United States v. Pitre, 63 M.J. 163 (2006). The court held that simple disorder with a trainee is an LIO of Article 92, violation of a lawful general regulation, having a relationship not required by the training mission. United States v. Fuller , 54 M.J. 107 (2000). Appellant was convicted of numerous offenses stemming from his sexual relations with subordinate female members of his unit. The CAAF granted review on the issue of whether the evidence was legally sufficient to sustain a conviction for cruelty and maltreatment of one of the victims. The evidence showed that while assigned to an inprocessing unit where the appellant was her platoon sergeant, the victim voluntarily went to the appellant’s apartment with a friend, drank 10-12 oz. of liquor, kissed appellant, and got undressed and engaged in repeated sexual intercourse with appellant and another platoon sergeant. Additionally, the victim stated that in her decision to have sexual intercourse with the appellant, she never felt influenced by his rank and that he never threatened her or her career. Finally, the CAAF concluded that the evidence did not support a finding that the victim showed any visible signs of intoxication prior to the sexual intercourse with appellant. Although the CAAF found that the evidence was not legally sufficient to sustain a conviction for cruelty and maltreatment, they did find that it supported a conviction for the lesser-included offense of a simple disorder in violation of Article 134, UCMJ, since the appellant’s conduct was prejudicial to good order and discipline or service discrediting. In mentioning that “appellant’s actions clearly would support a conviction for violation the Army’s prohibition against improper relationships between superiors and subordinates…”, the CAAF cited to the current version of Army Regulation 600-20 (15 Aug[sic] 1999). The court, however, did not address the fact that the appellant’s conduct occurred in 1996, when the regulation was not punitive and that therefore he could not have been found guilty for failure to obey a general regulation under Article 92, UCMJ. United States v. Brown , 55 M.J. 375 (2001).
ISSUES: The CAAF considered the issues, inter alia, of:
1) whether the trial court erred by admitting the Air Force’s pamphlet on discrimination and sexual harassment for the members to consider on findings and sentencing; and
2) whether Improper Superior-Subordinate Relationships & Fraternization (ISSRFRT) the charges of conduct unbecoming an officer were supported by legally sufficient evidence.
FACTS: The appellant, a captain and an Air Force nurse, was convicted of conduct unbecoming an officer for his comments to and physical contact with three co-workers over a ten month period. Appellant was married, had one child, and had served nearly ten years on active duty. All victims were female and, like the appellant, were company grade officers and Air Force nurses. All the victims worked in the operating room with the appellant at some point. The physical contact for which appellant was convicted included placing his hand on the other nurses’ hair, thighs, knees, and buttock. The verbal conduct for which appellant was convicted included persistent complements on their hair, eyes, and physical appearance and questions about their weight, whether they were happily married, whether they had a boyfriend, if they had ever had an affair, and in the case of one nurse, what type of bathing suit she wore and if women masturbated. Additionally, he asked them for their home phone numbers and asked them out for dates. Some of the victims showed their displeasure with appellant’s physical contact with them by moving away from the appellant, and one told the appellant that she did not like the way he touched her. Contrarily, none of the complainants made their disapproval of the appellant’s verbal comments known to him or to anyone in their chain-of-command.
HOLDING: The CAAF ruled that the military judge did not abuse his discretion when he admitted the nonpunitive Air Force Pamphlet (AFP) 36-2705, Discrimination and Sexual Harassment (28 February 1995) over defense objection. In so ruling, the CAAF agreed with the military judge that the AFP was relevant to establish notice of the prohibited conduct and the applicable standard of conduct in the Air Force community to the appellant. Additionally, the CAAF stated that in cases were evidence of the custom of the service is needed to prove an element of an offense, it is likely that the probative value will out weigh the prejudicial effect. With regard to the sufficiency of the evidence, the CAAF focused on the fact that government relied on the AFP to establish the applicable standard of conduct. When considering the standards in the AFP, combined with the facts of the case, the CAAF concluded that the government had to show that: “(1) appellant’s conduct was ‘unwelcomed’; (2) it consisted of verbal and physical conduct of a sexual nature and (3) it created an intimidating, hostile, or offensive work environment that was so severe or pervasive that a reasonable person would perceive that work environment as hostile or abusive, and the victim of the abuse perceived it as such.” The CAAF went on to analyze the verbal comments and physical contact by the appellant separately. In finding the evidence legally insufficient to support appellant’s convictions for the verbal comments, the CAAF noted that the record was clear that none of the victims ever informed the appellant that any of his remarks were unwelcome. While the AFP does not require a recipient of sexual remarks to tell the speaker that the remarks were unwelcome, the CAAF felt that a recipient’s action or inaction in response to the remarks is relevant in determining whether the speech was unwelcome. The CAAF further noted from the record that the working atmosphere of the parties regularly accepted conversations involving physical appearance and sexual matters. This atmosphere cut against a finding that the appellant’s comments created a work environment that was “hostile or abusive.” However, the CAAF affirmed the convictions for the physical contact, concluding that it was not reasonable for the appellant “to assume that [the victims] would consent to physical contact of an intimate nature absent some communication of receptivity or consent.” United States v. Carson , 55 M.J. 656 (Army Ct.Crim.App. 2001). Appellant was convicted, contrary to his pleas, of maltreatment of subordinates (five specifications) and indecent exposure (three specifications). Appellant was the supervising desk sergeant in a military police station. While on duty appellant ordered a female MP to “physically search his crotch,” and he repeatedly exposed his penis to three of his subordinate female MP Soldiers. The appellant challenged the Improper Superior-Subordinate Relationships & Fraternization (ISSRFRT) maltreatment conviction stemming from his conduct with one of the victims, stating that his conduct did not result in “physical or mental pain or suffering” by this alleged victim. The victim of the challenged conviction testified that she never asked appellant to see his penis, that she was bothered and shocked when he exposed himself, and that she considered herself a victim. In holding that proof that the victim suffered “physical or mental pain” was not required in order to support a conviction for maltreatment of a subordinate, the ACCA relied on the fact that neither the UCMJ nor the Manual of Courts-Martial contained this requirement. In making this determination, ACCA expressly overruled its earlier contrary holding in United States v. Rutko , 36 M.J. 798 (A.C.M.R. 1993). Affirmed by United States v. Carson , 57 M.J. 410 (C.A.A.F. 2002) United States v. Matthews , 55 M.J. 600 (C.G.Ct.Crim.App. 2001). Contrary to his pleas, appellant was convicted of attempted forcible sodomy, maltreatment by sexual harassment, indecent assault, and solicitation to commit sodomy. The charges arose from allegations of a subordinate female enlisted sailor who claimed that while she was on TDY with the appellant, he sexually assaulted her and attempted to force her to perform oral sodomy on him while they were in his hotel room. Contrarily, the appellant testified that it was the alleged victim who had initiated the sexual interaction, that the sexual foreplay was mutual, and that he never used force on her. Evidence presented at trial established that the appellant had sixteen years on active duty and had amassed an outstanding record and reputation for devotion to duty and honesty. In sharp contrast, several witnesses stated that they had little or no confidence in the alleged victim’s truthfulness or integrity, and that she was a poor duty performer. The service court felt that this case boiled down to a swearing contest between the two parties, therefore, the issue of each of their credibility was paramount. In overturning the appellant’s convictions for attempted forcible sodomy, maltreatment by sexual harassment, and indecent assault, the court relied heavily on the disparate opinion and reputation testimony concerning the two involved parties. The majority gave little weight to the testimony of medical and psychiatric experts who treated the alleged victim and found her credible and her reaction to the assault consistent with post-traumatic stress disorder. The court noted that these experts had assumed the accuracy of the facts related by the alleged victim and also pointed to the defense forensic psychiatrist who was skeptical of the alleged victim’s account of events. The majority was quick to point out that under the facts of the case, the appellant was guilty of violating the service’s general regulation against fraternization, but that he was never charged with that crime. United States v Goddard , 54 M.J. 763 (N.M.Ct. Crim.App. 2000). Contrary to his pleas, the appellant was convicted of maltreatment and fraternization in violation of Articles 93 and 134, UCMJ. The charges resulted from a one time consensual sexual encounter with his female subordinate on the floor of the detachment’s administrative office. In setting aside the maltreatment conviction, the service court cited the CAAF’s decision in U.S. v. Fuller , 54 M.J. 107 (2000), in which it concluded that, “a consensual sexual relationship between a superior and a subordinate, without more, would not support a conviction for the offense of maltreatment.” The court did, however, approve the lesser-included offense of a simple disorder in violation of Article 134, UCMJ. The fact that the sexual encounter took place in the detachment’s administrative office, that after the sexual encounter was over the appellant instructed the victim leave the office in a manner that ensured that other personnel would not see her, and that the victim lost respect for and avoided the appellant because she had been briefed that such relationships were improper, all led the court to conclude that appellant’s conduct was prejudicial to good order and discipline. Improper Superior-Subordinate Relationships & Fraternization (ISSRFRT) United States v. Sanchez , 50 M.J. 506 (A.F.Ct.Crim.App. 1998). Accused cannot be convicted of both conduct unbecoming (Art. 133) and fraternization (Art. 134) when the misconduct alleged in the specifications is identical; fraternization gets dismissed. Those fraternization allegations not alleged in conduct unbecoming specifications remain. Court cites United States v. Harwood , 46 M.J. 26, 28 (1997) in support. United States v. Hawes, 51 M.J. 258 (1999). CAAF affirmed Air Force Court’s decision to set aside fraternization conviction and to reassess the appellant’s sentence without ordering a rehearing. CAAF agreed that the fraternization offense was “relatively trivial” when compared to other misconduct. United States v. Mann, 50 M.J. 689 (A.F.Ct.Crim.App. 1999). Sexual relationship is not a prerequisite for fraternization. Evidence was legally and factually sufficient to support conviction for fraternization. No interference with accused’s access to witnesses where order prohibiting accused from contact with his fraternization partner did not prohibit accused’s counsel from such contact. A.F. court finds no unlawful command influence or unlawfulness with the order. United States v. Rogers, 54 M.J. 244 (2000). Evidence legally sufficient to sustain Art. 133 conviction for the offense of conduct unbecoming an officer by engaging in an unprofessional relationship with a subordinate officer in appellant’s chain of command. AF Court holds there is no need to prove breach of custom or violation of punitive regulation.